Television Category

Broadcasters Get a Free Throw in Aereo Case

Scott R. Flick

Posted April 17, 2014

By Scott R. Flick

Oral arguments before the Supreme Court are less than a week away in the Aereo case, and broadcasters are feeling pretty good about their chances. With the Department of Justice, Professor Nimmer (who, along with his father, quite literally wrote the book on copyright), and a host of other luminaries filing in support of the broadcasters' position, the storyline looks a lot like broadcasters have portrayed it from the beginning: that this is a simple case of copyright infringement hidden behind a veil of modern technological obfuscation.

Sensing that such a storyline is fatal to its prospects, Aereo has responded by casting this case as an attack on consumers' use of the cloud, and has attracted some allies based on that storyline. However, it is a pretty thin storyline, as few think that the country's highest court is so careless as to draft a broadcast retransmission rights decision that accidentally destroys the world of cloud computing. The two are not tough to distinguish, and even if the Court secretly disliked cloud computing, it hardly needs to opine on the copyright implications of cloud computing to decide the Aereo question.

Still, lower courts have disagreed on these issues, and only a fool enters the Supreme Court certain that the court will rule in his favor. There are many moving parts, and if a case were easy to decide, it would not have made it to the Supreme Court. That is why both sides will be anxiously watching the oral arguments for hints as to where the various justices stand on the matter.

As of today, however, broadcasters have one less reason to sweat about the outcome. The Court announced yesterday that Justice Alito, who had previously recused himself from the case, is now able to participate. This is a significant development for broadcasters. Because the 2nd Circuit decision being appealed was in Aereo's favor, Alito's earlier recusal meant that the case would be heard by the remaining eight justices. That created the risk of a 4-4 tie, which would leave the adverse 2nd Circuit decision in place.

In that scenario, broadcasters would need to win 5 of the 8 possible votes in order to overturn the lower court decision. That can be a tall order, and impossible if it turns out that four justices are firmly on the Aereo side of the fence. With Alito no longer recused, broadcasters now have an additional avenue for scoring that fifth vote. In other words, it's easier to attract 5 votes out of 9 than it is to get 5 votes out of 8. That means broadcasters are unlikely to find themselves losing on a tie vote, and if the rest of the court should split 4-4, Alito's entry into the fray effectively gives broadcasters a free throw opportunity at the buzzer to score his vote and break that tie. Now broadcasters just need to convert on that opportunity.

FCC Form 398 Children's Programming Report Due

Posted April 10, 2014

Commercial full-power and Class A television stations must by this date electronically file FCC Form 398 demonstrating their responsiveness to "the educational and informational needs of children" for the period January 1, 2014 through March 31, 2014, and ensure a copy of the form as filed with the FCC is in the station's public inspection file.

Quarterly Issues/Programs List Required

Posted April 10, 2014

All full-power radio, full-power television, and Class A television stations must place in their public inspection files by this date the Quarterly Issues/Programs List covering the period January 1, 2014 through March 31, 2014.

The Supreme Court Giveth Where the FCC Taketh Away

Scott R. Flick

Posted April 2, 2014

By Scott R. Flick

After Monday's FCC meeting left television broadcasters facing higher expenses and lower revenues by restricting the use of Joint Sales Agreements and joint retransmission negotiations, broadcasters were due for some good news. Where the FCC is the bearer of bad news, it has often fallen to the courts to be the bearer of good news, generally by overruling the adverse FCC decision. Unfortunately, that process can take years, meaning that in Washington you have to take a very long term view of "the good outweighs the bad."

This week, however, the FCC's bad news was followed very quickly by the Supreme Court's decision today in McCutcheon v. Federal Election Commission. In McCutcheon, the Court ruled that while limits on political contributions to individual candidates continue to be permissible, overall limits on contributions to candidates and party committees are unconstitutional. In other words, the government can limit how much you donate to an individual candidate or party committee, but cannot limit the number of candidates or party committees you support with your donations.

While campaign finance reform will continue to be a hot-button issue, a direct effect of today's decision will be to increase the war chests of candidates and parties through greater political donations. Much of those increased funds will ultimately be used for political advertising, redounding to the benefit of media in general, but particularly to local broadcasters.

The Court's 5-4 decision was not particularly a surprise, as many saw McCutcheon as the sequel to 2010's Citizens United decision, in which the Court found restrictions on political expenditures by corporations and unions to be unconstitutional. When the Supreme Court released its decision in Citizens United, we all understood the immediate financial implications for media, but no one was quite sure just how great that impact would be. It turned out to be very substantial, completing the multi-decade transition of political advertising from being a "not worth the regulatory headaches" obligation of broadcasters to now being a highly sought after segment of the overall advertising market. Indeed, there is no stronger validation of this than the fact that cash flow multiples used in station acquisitions are based on two-year averages, balancing political year revenue with revenue from a non-political year.

As in 2010, the question is not whether today's decision will result in more ad revenue for media outlets, but how much more. Given that in recent years the number of donors bumping up against the now-unconstitutional cap measured in the hundreds rather than the thousands, the economic impact of today's decision is unlikely to match that of Citizens United. However, it may have a more interesting effect. The limit on overall donations effectively forced a political contributor to pick and choose a small number of candidates to support with the maximum ($2600 at the moment) donation, and to turn away others because of the cap. The practical result was that donors tended to focus their contributions on candidates in hotly contested races where the contribution could have the most impact.

With today's elimination of the overall cap, a donor can make the maximum individual donation to every federal political candidate it wishes to support. The likely result is an increased flow of political contributions to candidates in races previously deemed to be lost causes, creating tighter races through the influx of political ad dollars.

From a political standpoint, this means the number of hotly contested races around the country will increase. From an economic standpoint, it means political ad dollars will flow on a more geographically diverse basis, ensuring that a larger number of local stations benefit, rather than just those in swing states and swing districts. This will be welcome news for stations that previously found themselves missing out on political ad dollars while candidates and parties flung large sums at stations in nearby swing districts. By itself, it may not entirely remove the sting of Monday's FCC actions, but given enough time, the courts may eventually produce some good news in that regard as well.

Pre-filing Renewal Announcements for Television Stations

Posted April 1, 2014

Full-power television stations and Class A television stations, as well as LPTV stations capable of local origination, licensed to communities in Arizona, Idaho, New Mexico, Nevada, Utah, or Wyoming must on this date begin to air their pre-filing renewal announcements in accordance with the FCC's regulations. Additional announcements must air on April 16, May 1 and May 16.

Post-filing Renewal Announcements for Radio and Television Station

Posted April 1, 2014

Full-power AM and FM radio stations and LPFM stations licensed to communities in Delaware and Pennsylvania, and full-power television stations and Class A television stations, as well as LPTV stations capable of local origination, licensed to communities in Texas, must begin on this date to air their post-filing license renewal announcements in accordance with the FCC's regulations. Additional announcements must air on April 16, May 1, May 16, June 1 and June 16. FM Translator and TV Translator stations, as well as LPTV stations not capable of local origination, licensed to communities in these states must arrange for the required newspaper public notice of their license renewal application filing.

Filing of Applications for Renewal of Licenses for Radio and Television Stations

Posted April 1, 2014

Full-power AM and FM radio stations, as well as LPFM and FM Translator stations, licensed to communities in Delaware and Pennsylvania, and full-power television, Class A television, LPTV and TV Translator stations, licensed to communities in Texas, must electronically file their applications for renewal of license on FCC Form 303-S, along with their Equal Opportunity Employment Reports on FCC Form 396 by this date, and commercial stations must promptly submit their FCC license renewal application filing fee. FCC Forms 303-S and 396 as filed must be placed in stations' public inspection files.

FCC Form 323-E Biennial Ownership Report Due

Posted April 1, 2014

Noncommercial radio stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, or Tennessee and noncommercial television stations licensed to communities in Texas (other than sole proprietorships or partnerships composed entirely of natural persons) must electronically file by this date their biennial ownership reports on FCC Form 323-E, unless they have consolidated this filing date with that of other commonly owned stations licensed to communities in other states. FCC Form 323-E does not require a filing fee. The form as filed must be placed in stations' public inspection files.

Annual EEO Public File Report Required

Posted April 1, 2014

Station employment units that have five or more full-time employees and are comprised of radio and/or television stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee or Texas must by this date place in their public inspection file and post on their station website a report regarding station compliance with the FCC's EEO Rule during the period April 1, 2013 through March 31, 2014. A more detailed review of station EEO obligations and the steps for implementing an effective EEO program can be found in our most recent EEO Advisory.

FCC Enforcement Monitor

Scott R. Flick Carly A. Deckelboim

Posted March 18, 2014

By Scott R. Flick and Carly A. Deckelboim

March 2014

Pillsbury's communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month's issue includes:

  • FCC Proposes $40,000 Fine for Public Inspection File/License Renewal Violations
  • Short-Term License Renewal and Hefty Fine for Missing QIP Lists
  • $5,000 Fine for FM Station's Failure to Maintain Minimum Operating Hours
Failure to Disclose Rules Violations Leads to $40,000 Fine

Late last month, the FCC issued two essentially identical orders against co-owned Milwaukee and Chicago Class A TV stations in response to a number of missing Quarterly Issues/Programs Lists and Children's Television Programming Reports and for not reporting the missing issues/programs lists in the stations' license renewal applications. The FCC's Media Bureau proposed a $20,000 fine against each station, for a total fine of $40,000.

In late December of last year, the FCC issued Notices of Apparent Liability for Forfeiture ("NAL") for the two stations, noting that the stations had mentioned in their license renewal applications that they had failed to timely file numerous Children's Television Programming Reports, but had not disclosed the absence from their online public files of over a dozen (each) Quarterly Issues/Program Lists. Section 73.3526 of the FCC's Rules requires licensees to maintain information about station operations in their public inspection files so the public can obtain "timely information about the station at regular intervals."

The base fine for failure to file a required form is $3,000, and the base fine for public file violations is $10,000. After considering the facts, the FCC concluded in each NAL that the respective station was liable for $9,000 for the missing Quarterly Issues/Programs Lists, $9,000 for the missing Children's Television Programming Reports, and an additional $2,000 for failing to disclose the missing Quarterly Issues/Program Lists in their renewal applications.

After receiving the NALs, each station requested that the fine be reduced due to an inability to pay. The FCC will not consider reducing a fine based on a claimed inability to pay unless the licensee submits federal tax returns for the last three years, financial statements, or other documentation that accurately demonstrates its financial status. In this case, each station submitted appropriate documentation about its financial condition. However, the FCC was not persuaded that the amount of the fines exceeded each station's ability to pay, and declined to reduce the fines.

Public Inspection File Violations Lead to $46,000 in Fines and Limited License Terms
In connection with recent license renewal applications, the FCC issued four essentially identical Memorandum Opinions and Orders and Notices of Apparent Liability for Forfeiture, resulting in $46,000 in fines for a Washington radio licensee. In addition, three of the licensee's four stations' license renewal applications were granted for only a four-year term rather than the normal eight-year term.

The first three of the licensee's stations were missing, respectively, 24, 26, and 20 Quarterly Issues/Programs Lists for various periods during the license term. The fourth station's public inspection file was missing 12 reports for a two-year period spanning from 2006 to 2008.

Continue reading "FCC Enforcement Monitor"

Pre-Filing and Post-Filing License Renewal Announcement Reminder for TV Stations in Arizona, Idaho, New Mexico, Nevada, Utah, and Wyoming

Scott R. Flick Lauren Lynch Flick

Posted March 14, 2014

By Lauren Lynch Flick and Scott R. Flick

March 2014

TV, Class A TV, and locally originating LPTV stations licensed to communities in Arizona, Idaho, New Mexico, Nevada, Utah, and Wyoming must begin airing pre-filing license renewal announcements on April 1, 2014. License renewal applications for all TV stations in these states are due by June 2, 2014.

Pre-Filing License Renewal Announcements

Stations in the video services that are licensed to communities in Arizona, Idaho, New Mexico, Nevada, Utah, and Wyoming must file their license renewal applications by June 2, 2014 (June 1 being a Sunday).

Beginning two months prior to that filing, full power TV, Class A TV, and LPTV stations capable of local origination must air four pre-filing renewal announcements alerting the public to the upcoming license renewal application filing. These stations must air the first pre-filing announcement on April 1, 2014. The remaining announcements must air on April 16, May 1, and May 16, 2014, for a total of four announcements. A sign board or slide showing the licensee's address and the FCC's Washington DC address must be displayed while the pre-filing announcements are broadcast.

For commercial stations, at least two of these four announcements must air between 6:00 p.m. and 11:00 p.m. (Eastern/Pacific) or 5:00 p.m. and 10:00 p.m. (Central/Mountain). Locally-originating LPTV stations must broadcast these announcements as close to the above schedule as their operating schedule permits. Noncommercial stations must air the announcements at the same times as commercial stations, but need not air any announcements in a month in which the station does not operate. A noncommercial station that will not air some announcements because it is off the air must air the remaining announcements as listed above, i.e., the first two must air between 6:00 p.m. and 11:00 p.m. (Eastern/Pacific) or 5:00 p.m. and 10:00 p.m. (Central/Mountain).

The text of the pre-filing announcement is as follows:

On [date of last renewal grant], [call letters] was granted a license by the Federal Communications Commission to serve the public interest as a public trustee until October 1, 2014. [Stations which have not received a renewal grant since the filing of their previous renewal application should modify the foregoing to read: "(Call letters) is licensed by the Federal Communications Commission to serve the public interest as a public trustee."]

Our license will expire on October 1, 2014. We must file an application for renewal with the FCC by June 2, 2014. When filed, a copy of this application will be available for public inspection at It contains information concerning this station's performance during the last eight years [or other period of time covered by the application, if the station's license term was not a standard eight-year license term].

Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this station has operated in the public interest should file comments and petitions with the Commission by September 1, 2014.

Further information concerning the FCC's broadcast license renewal process is available at [address of location of the station] or may be obtained from the FCC, Washington, DC 20554.

If a station misses airing an announcement, it should broadcast a make-up announcement as soon as possible and contact us to further address the situation. As noted above, special rules apply to noncommercial stations that do not normally operate during any month when their announcements would otherwise be required to air, as well as to other silent stations. These stations should contact us to ensure they give the required public notice.

Article continues -- the full article can be found at Pre-Filing and Post-Filing License Renewal Announcement Reminder

Big Fines for False EAS Tones Demonstrate the Need for a Good Indemnification Clause

Scott R. Flick

Posted March 3, 2014

By Scott R. Flick

There was quite a stir today when the FCC, despite being closed for a snow day, issued a Notice of Apparent Liability proposing very large fines against Viacom ($1,120,000), NBCUniversal ($530,000), and ESPN ($280,000) for transmitting false EAS alert tones. According to the FCC, all three aired an ad for the movie Olympus Has Fallen that contained a false EAS alert tone, with Viacom airing it 108 times on seven of its cable networks, NBCUniversal airing it 38 times on seven of its cable networks, and ESPN airing it 13 times on three of its cable networks.

The size of the fines certainly drew some attention. Probably not helping the situation was the ad's inclusion of the onscreen text "THIS IS NOT A TEST" and "THIS IS NOT A DRILL" while sounding the EAS tone. The FCC launched the investigation after receiving complaints from the public.

All three entities raised a variety of arguments that were uniformly rejected by the FCC, including that "they had inadequate notice of the requirements and applicability of the rules with respect to EAS violations." What particularly caught my eye, however, was that all three indicated the ad had cleared an internal review before airing, and in each case, those handling the internal review were apparently unaware of Section 325 of the Communications Act (prohibiting transmission of a "false or fraudulent signal of distress") and Section 11.45 of the FCC's Rules, which states that "No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS."

Back in 2010, I wrote a post titled EAS False Alerts in Radio Ads and Other Reasons to Panic that discussed the evolution of the FCC's concerns about false emergency tones in media, which originally centered on sirens, then on Emergency Broadcast System tones, and now on the Emergency Alert System's digital squeals. Two months later, I found myself writing about it again (The Phantom Menace: Return of the EAS False Alerts) when a TV ad for the movie Skyline was distributed for airing with a false EAS tone included in it.

That was the beginning of what has since become a clear trend. Those initial posts warned broadcasters and cable programmers to avoid airing specific ads with false EAS tones, but were not connected to any adverse action by the FCC. After three years of EAS tone tranquility, the issue reemerged in 2013 when hackers managed to commandeer via Internet the EAS equipment of some Michigan and Montana TV stations to send out false EAS alert warnings of a zombie attack. The result was a rapid public notice from the FCC instructing EAS participants to change their EAS passwords and ensure their firewalls are functioning (covered in my posts FCC Urges IMMEDIATE Action to Prevent Further Fake EAS Alerts and EAS Alerts and the Zombie Apocalypse Make Skynet a Reality), but no fines.

From there we moved in a strange direction when the Federal Emergency Management Agency distributed a public service announcement seeking to educate the public about the Emergency Alert System, but used an EAS tone to get that message across. Because it did not involve an actual emergency nor a test of the EAS system, the PSA violated the FCC's rule against false EAS tones and broadcasters had no choice but to decline to air it. The matter was resolved when the FCC quickly rushed through a one-year waiver permitting the FEMA ad to be aired (Stations Find Out When Airing a Fake EAS Tone Is Okay).

Late last year, however, the evolution of the FCC's treatment of false EAS alerts turned dark (FCC Reaches Tipping Point on False EAS Alerts) when the FCC issued the first financial penalties for false EAS alerts. The FCC proposed a $25,000 fine for Turner Broadcasting and entered into a $39,000 consent decree with a Kentucky radio station for airing false EAS alert tones. The FCC indicated at the time that other investigations were ongoing, and more fines might be on the way.

We didn't have to wait long, as just two months later, the FCC upped the ante, proposing a fine of $200,000 against Turner Broadcasting for again airing false EAS alert tones, this time on its Adult Swim network. The size of the fine was startling, and according to the FCC, was based upon the nationwide reach of the false EAS tone ad, as well as the fact that Turner had indicated in connection with its earlier $25,000 fine that it had put in place mechanisms to prevent such an event from happening again. When it did happen again, the FCC didn't hesitate to assess the $200,000 fine.

Today's order, issued less than two months after the last Turner decision, ups the ante once again, proposing fines of such size that only some of the FCC's larger indecency fines compare. The FCC is clearly sending a signal that it takes false EAS tones very seriously, and the fact that the ads containing the EAS tones were produced by an independent third party didn't let the programmers off the hook. In other words, it doesn't matter how or why the ads got on the air; the mere fact that they aired is sufficient to create liability.

So what lesson should broadcasters and cable networks take away from this? Well, the all too obvious one is to do whatever it takes to prevent false EAS tones from making it on air. However, an equally useful lesson is to make sure that your contracts with advertisers require the advertiser to warrant that the spots provided will comply with all laws and to indemnify the broadcaster or network if that turns out not to be the case. That won't save you from a big FCC fine and a black mark on your FCC record, but it will at least require the advertiser to compensate you for the damages you suffered in airing the ad and defending yourself. Unfortunately, many advertising contracts are not particularly well drafted (and some are just a handshake), which can expose you to a variety of liabilities like this unnecessarily.

It is therefore wise to have both your ad contracts and your advertising guidelines carefully reviewed by counsel experienced in this area of the law. Vigilant review of ads submitted for airing is an excellent first line of defense, but as demonstrated in today's decision, it won't do much good if the individuals reviewing the ads don't know what to look for.

FCC Enforcement Monitor

Scott R. Flick Carly A. Deckelboim

Posted February 26, 2014

By Scott R. Flick and Carly A. Deckelboim

February 2014

Pillsbury's communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month's issue includes:

  • FCC Limits License Renewal to Two Years and Assesses $4,000 Fine
  • $24,000 Consent Decree for Incomplete Public Inspection File
  • Hotels Cited for Exceeding Signal Leakage Limits in Aeronautical Bands

Station Assessed Fine for Public File Violations and Granted Short-Term License Renewal
In reviewing the license renewal application for a Meridian, Texas radio station, the FCC's Media Bureau proposed a $4,000 fine for public inspection file violations. It also granted the station's license renewal application, but only for a period of two years (rather than the normal eight), based upon the station's extended periods of silence during the prior license term.

Section 73.3526 of the FCC's Rules requires licensees to maintain information about station operations in the station's public inspection file so the public can obtain "timely information about the station at regular intervals." In its license renewal application, the station indicated that it could not locate a number of its quarterly issues-programs lists. The base forfeiture amount for public inspection file violations is $10,000, but the FCC has authority to adjust that amount up or down based on a licensee's circumstances. Here, the FCC noted that "the violations were extensive, occurring over a period of nearly two years and involving at least 6 issues/programs lists." Despite this, the FCC ultimately imposed a forfeiture amount of only $4,000 since the violations were not "evidence of a pattern of abuse."

The station was also dark for lengthy periods during the prior license term. Section 312(g) of the Communications Act prohibits long periods of silence by licensed stations because licensees have an obligation to provide service to the public by broadcasting on their allocated spectrum. When the FCC reviews a station's renewal application, it considers whether the licensee has adequately served its community of license. Section 309(k) of the Communications Act provides that the renewal application should be granted if "(1) the station has served the public interest, convenience and necessity; (2) there have been no serious violations of the Act or the Rules; and (3) there have been no other violations which, taken together, constitute a pattern of abuse." In this case, the FCC pointed out that the licensee had two periods of silence, each lasting nearly a year, and that the station had been dark for almost half of the license term. Since the licensee had failed to provide "public service programming such as news, public affairs, weather information, and Emergency Alert System notifications" during these long periods of inactivity, the FCC determined that granting a renewal of only two years would be the most effective sanction because it would incentivize the licensee to maintain its broadcast operations and not go silent in the future.

License Agrees to Pay $24,000 Under Terms of Consent Decree for Missing Public File Documents
The FCC has entered into a consent decree with an Atlanta LPTV licensee after conducting a lengthy investigation. Almost two years ago, in March of 2012, the FCC sent a letter to the licensee asking for specific information to determine the station's eligibility for Class A television status. The requested information included the location of the main studio, a description of production equipment, names of employees, the location of the public inspection file, a copy of the quarterly issues/programs lists, and a copy of the public inspection file documentation. In its response, submitted in June of 2012, the licensee informed the FCC that the station had been vandalized and provided police reports and other documentation to account for its failure to produce a public inspection file. In another letter dated almost one year after the licensee's explanatory letter, the FCC asked for further clarification from the licensee regarding the location of the station's public inspection file and why the police report did not mention vandalism of the public inspection file. The licensee replied one month later in July of 2013 and provided another police report to explain the theft of equipment.

Continue reading "FCC Enforcement Monitor"

Aereo Stumbles in Utah on Its Way to the Supreme Court

Scott R. Flick

Posted February 20, 2014

By Scott R. Flick

I wrote a few weeks ago about Aereo's Rocky Path Ahead, discussing the legal obstacles Aereo will need to overcome even if the Supreme Court should rule in its favor in the currently pending proceeding. Yesterday, that path became even rockier, when a federal judge in Utah dropped a boulder in Aereo's path. The resulting sound was that of a thousand tiny antennas splintering against Utah red sandstone, with the judge granting a preliminary injunction prohibiting Aereo from operating in Utah, Colorado, Kansas, New Mexico, Oklahoma, and Wyoming.

The decision is Aereo's first major defeat in court, although Aereo look-alike FilmOn X already has two preliminary injunctions against it. The most notable aspect of Judge Kimball's decision, however, is that he had little difficulty concluding that Aereo's service was exactly the type of copyright infringement Congress intended to prohibit in enacting the 1976 Copyright Act. Quotable quotes from the decision include "[t]he court ... has carefully reviewed each of the prior decisions and has concluded that the California and D.C. district court cases [granting injunctions] as well as Judge Chin's dissent in the Second Circuit case are the better reasoned and more persuasive decisions ...." and "[t]his court agrees with Judge Chin that '[b]y any reasonable construction of the statute, Aereo is engaging in public performances' when it intercepts and retransmits copyrighted programs to paying strangers."

As the language above indicates, broadcasters have much to like in Judge Kimball's decision and really nothing to dislike. In fact, they surely hope that the Supreme Court decision will look a lot like the Utah decision. In that regard, I should mention that TV Technology this week published a pro/con article on how the Supreme Court should rule, and asked me to write the pro-broadcaster analysis. John Bergmayer of Public Knowledge ably handled the pro-Aereo portion of the article which, by coincidence, was published on the same day the Utah decision was released. In reading Judge Kimball's decision, I was struck by how many of the pro-broadcaster arguments found their way into his decision. For those interested, reprinted below is my contribution to the TV Technology article. If you would like to see the entire article, including John Bergmayer's pro-Aereo argument, it can be found here.

The Broadcaster Argument Against Aereo

The major argument you hear in support of Aereo is "if a viewer can do it, then the viewer should be allowed to hire Aereo to do it for them." That logic is flawed for a number of legal reasons too complex to address in this short space, but it is also factually flawed--a truism that isn't true (i.e., a person can have sex with their spouse, but if they hire someone else to do it, that's prostitution, and it's illegal in most places).

More specifically though, Aereo isn't doing what viewers otherwise do on their own, it is doing what no viewer in their right mind would do--renting a building near the Empire State Building to place their antenna and the equipment necessary to transcode the signal for relay over the Internet, signing up for broadband Internet access at that leased sight so the signal can be transmitted over the Internet, paying for electricity at that site to power the equipment, making regular maintenance visits to keep the equipment operational, and paying higher fees for both the antenna site and home broadband connections because of the broadband speeds and capacity needed to relay nonstop HD broadcast programming.

The reason no consumer has ever done this is obvious--installing a window antenna, buying basic cable service, or just watching Internet video sources like Hulu is both simpler and cheaper. The difference between a home viewer and Aereo is akin to the difference between a recreational fisherman and a commercial fisherman--for good reason, the commercial fisherman is subject to many more regulations, and if the recreational fisherman starts using commercial trawlers and drift nets for fishing, he is no longer a recreational fisherman.

The Supreme Court is not, however, considering Aereo's general legality at this early stage, but only the narrow question of "whether a company 'publicly performs' a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet." The stakes are markedly higher for Aereo than for broadcasters at the Supreme Court, as a ruling against Aereo would pave the way for an injunction against its service while simultaneously making it very difficult for Aereo to demonstrate in various courts around the country that its service does not infringe copyright. In contrast, a ruling in favor of Aereo, while a significant boost, would still leave Aereo with major legal and factual obstacles to overcome at trial (e.g., does each Aereo subscriber actually have their own antenna and DVR as promised?; do the copies of programs made at the request of subscribers qualify as fair use under copyright policy?). In other words, the Supreme Court's ruling on this one issue could be devastating to Aereo, but a ruling to the opposite effect won't resolve Aereo's other legal issues.

Copyright law can be arcane in the extreme, but to oversimplify the transmission issue a bit, it boils down to this: if Aereo transmits the same content to a thousand subscribers, there is no dispute that each subscriber counts as a public performance of the content and infringes the rights of the copyright holder. Aereo argues however that it is not transmitting the same content to a thousand subscribers, but is transmitting unique content to each of those subscribers, leading to a thousand private performances that do not trigger copyright infringement. Stated in this way, the key question becomes "what is the 'content', and how can it be unique for each subscriber?" Aereo's argument is that since each subscriber is assigned (at least temporarily) its own antenna and hard drive, a transmission of program content from that particular hard drive is unique. This conclusion is counterintuitive at best, since every hard drive copy and transmission of this week's episode of The Big Bang Theory will be bit-for-bit identical with every other one, undercutting the notion that these transmissions are in any way unique private performances. As Judge Chin pointed out in his Second Circuit dissents in this proceeding, the relevant "content" has to be the program itself, not the bits on a particular hard drive, and since the same program is being distributed to those thousand subscribers, Aereo is transmitting a public performance that infringes copyright. Asserting that "this string of bits is different than that string of bits because they come from different hard drives, even though they are bit-for-bit identical" is just one more reason people make fun of lawyers.

While Aereo asserts that this illogical result is a loophole left by Congress in copyright law, it is not. Instead, it is a loophole created out of whole cloth by overenthusiastic extension of the sometimes tortured logic found in the Second Circuit's earlier decision in the Cablevision case. Cablevision, however, is a good example of that maxim we learned in law school that "good facts make bad law." In that case, the subscriber had paid for the content, and the cable operator had paid for the right to retransmit that content. Setting aside its legal reasoning to get there, it was not difficult for the Second Circuit to conclude, in effect, that if everyone in the process has been compensated anyway, and the proposed use isn't undercutting the market for that content, then what's the harm of letting a subscriber have their DVR located at the cable headend rather than at their house? However, whenever the law is contorted to achieve a factually attractive outcome, the inevitable result is other parties seeking to apply that same tortured logic to situations with far less attractive facts. Aereo is that case, and the Supreme Court hopefully will be the solution.

Marijuana Advertising: Don't Get Fooled Again

Scott R. Flick

Posted February 19, 2014

By Scott R. Flick

It's been three years since I first wrote about marijuana advertising here at CommLawCenter. Despite a head-spinning number of developments since then, including the legalization of recreational marijuana in Washington and Colorado, the answer to the question of whether broadcast stations can accept marijuana advertising is no clearer today than it was then. Since all forms of marijuana use are prohibited by the federal government, and broadcasters rely on federal licenses to operate, millions of dollars of ad revenue hang in the balance.

While steadfastly maintaining that marijuana is an illegal and dangerous drug, the federal government's enthusiasm for prosecuting marijuana-related activities that are legal under state law has waxed and waned over the years. Call it the federal freeze/thaw cycle, because the only certainty so far has been that every thaw is inevitably followed by a federal freeze.

The last thaw was in 2009, when the Department of Justice issued a memorandum indicating it was not particularly interested in pursuing medical marijuana sales that complied with state law. A number of broadcasters took this to mean that the federal government would be okay with advertising medical marijuana, and started accepting the ads. In the dark early days of the recession, marijuana ad sales kept afloat many stations that were otherwise starving for ad revenue.

You can track what happened afterward in posts here at CommLawCenter. In May 2011, I wrote about the DOJ sending threatening letters to states that were then considering enacting medical marijuana laws. Those letters went so far as to threaten state employees with civil and criminal prosecution if they participated in implementing that state's medical marijuana law. At that point, most broadcasters that had been taking the ads stopped, waiting for the federal government, and perhaps the FCC itself, to provide clarification as to whether accepting marijuana ads threatened broadcast license renewals (or worse).

In the fall of 2011, I noted that the last bank in Colorado openly servicing medical marijuana businesses in that state closed those accounts, deciding that it wasn't worth the risk. That post also noted that the DOJ had sent letters to the landlords of marijuana dispensaries threatening prosecution, including the threat to confiscate buildings and the rent received from the dispensaries. A week later, a U.S. Attorney in California raised the specter of prosecuting radio and TV stations for airing medical marijuana ads. While nothing further came from that threat, it certainly rattled media that had accepted marijuana advertising. The federal government had once again put marijuana advertising into the deep freeze.

I was reminded of this cycle last week when media stories declared another federal thaw regarding the sale of marijuana. This past Friday, FinCEN (Financial Crimes Enforcement Network), a part of the Department of Treasury, announced a set of guidelines for banks "that clarifies customer due diligence expectations and reporting requirements for financial institutions seeking to provide services to marijuana businesses. The guidance provides that financial institutions can provide services to marijuana-related businesses in a manner consistent with their obligations to know their customers and to report possible criminal activity."

The response was predictable. Advocates of marijuana legalization hailed the action as proof that the federal government had come around on the issue. Arguably adding support to this view was a memo dated the same day from the Deputy Attorney General of the U.S. to all U.S. Attorneys appearing to accept state-approved marijuana sales, and prioritizing other types of marijuana offenses for prosecution. Specifically, U.S. Attorneys were advised to focus their resources on:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
  • Preventing marijuana possession or use on federal property.

Understandably, federally-chartered banks were less enthusiastic about the announcement, noting that federal law still bans the sale of marijuana, and that there was little reason for a bank to stick its neck out to service such accounts until that changes. Of course, it also didn't help that the DOJ memo was titled "Guidance Regarding Marijuana Related Financial Crimes" and that it was chock full of caveats like:

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